Complainant

Respondent

Parties

Olha  Mytrokhyna

Morbiz Ltd .

Representatives

  Self- represented.

Collins Kilfeather & Company Solicitors.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00063867-001

03/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00063867-002

03/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00063867-003

03/06/2024

The complainant has submitted a complaint that the respondent contravened the Terms of Employment (Information) Act, 1994, and the Employment Equality Act, 1998  in relation to her.

The complainant withdrew the complaint under Section 8 of the Unfair Dismissals Act, 1977.

The complainant was employed as a porter in the respondent’s accommodation Centre for homeless persons from 26/2/2024 until her dismissal on 20/5/2024.

She earned €13 an hour and worked 48 hours a week.

She submitted her complaint to the WRC on 3/6/2024.

CA-00063867-001. Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

The complainant contends that the respondent contravened section 3 of the Act by failing to provide her with terms and conditions of employment within a month of her employment. She had to ask frequently for same which she finally got on 17/4/2025.

She also contends that the respondent altered her terms of employment by informing her at interview on 22/2/2024 that her contract was for one year but presenting her with a fixed purpose contract for three months on 17/4/2024. The complainant said the respondent never said anything about a 3-month contract.

She never heard of any concerns with her work until she saw it in the submission.

CA-00063867-002. Complaint under section 77 of the Employment Equality Act, 1998.

 The complainant states that the respondent discriminated against her on the basis of race when the respondent paid all other employees, bar her husband, €0.50 -€1 an hour more than her. Both she and her husband are Ukrainian.  A porter appointed after her was paid a minimum of €14 an hour, though he was  doing the exact same work as the complainant. She did not receive equal pay with other lodge porters.

The complainant named four comparators.

Mr JM, Irish, hired after the complainant received €13.50 an hour.

Mr GM, a Malawian, was paid €14.00 an hour.

Mr FM, Irish, was paid €14 an hour.

 Mr L, British, was paid €14.00 an hour.

The complainant had the same responsibilities as these other, four porters. She did all the documentary paperwork.

 A rate of €13.50 was advertised on the Indeed website in February for porters, after she had commenced. The complainant states that she provided training to the 4 comparators who were earning more than her. She was asked by the Operations Manager in Charleston to train them.

She asked her manager, Mr N, about the different rates of pay and he just smiled, he couldn’t answer.

She does not accept the company’s argument that their responsibilities outweighed hers to an extent that they merited a higher rate of pay.

Cross examination of the witness.

She accepts that the four named employees were on higher rates because of their responsibilities.

She confirmed that she was contracted as a porter on €13 an hour.

She advised that she had not seen their pay slips.

She stated that it was irrelevant that a Ukrainian was employed on a rate of €17 an hour, as he was not a porter.

To the point that one of the comparators named by her, Mr JM, an Irishman, was paid the same rate as her, she stated that she was not sure.

When it was put to her that her Czech colleague, a porter, was paid at €13 an hour she stated that she was not sure.

To the point that the comparators had different responsibilities meriting different hourly rates, the complaint stated that they were all doing the same job as she was.

Regarding the extra euro an hour paid to Mr FM who lived in Charleston and was available to the employer at short notice to do other work, the complainant stated that she was not provided with the opportunity to live in Charleston Lodge or near it.

When put to the complainant that the only training required of her was to show the comparators around the premises and to show the location of different equipment if she was on duty, she stated that she had been asked to provide training.

To the point that comparators were employed for separate responsibilities, the witness accepted that but stated that only the Ukrainian was paid less.

She denies that Mr L was doing extra work to explain the extra €1 an hour. She assigned work to him so knew he was doing the work of a porter.  He became a handyman after her contract had ended and was a porter until that point, but not during her period of employment.

CA-00063867-003. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The complainant withdrew this complaint.

CA-00063867-001. Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

The respondent did provide the complainant with her written terms and conditions, though the timelines specified in section 3 of the Act had not been complied with. The complainant incurred no detriment.

The respondent disputes the complainant’s statements about assurances about the duration of the contract and the company director’s notes of her meeting of date will attest to that. Her husband received the same contract.

Ms Gaffney, Company Director, gave evidence under affirmation

She interviewed the complainant’s husband on 21/2/2024. He told the witness that his wife also was interested in a job.

The complainant stated to the witness that they had one car between her and her husband, but she could move to Charlestown. The witness advised her not to do so as it was only a three-month contract.

She was paid €13 an hour. She worked 12-hour shifts. At interview, the witness outlined what the job entailed. She told the complainant that it was an accommodation centre for homeless people. Her job would be to keep the place clean.

She told the complainant and her husband not to move to from their centre in Sligo.

 She asked about the complainant’s availability- hours etc. The complainant advised that she would need to work opposite her husband.

CA-00063867-002. Complaint under section 77 of the Employment Equality Act, 1998.

The respondent denied that they discriminated against the complainant on any of the grounds under the Act.

Differences in pay rates between the complainant and the named comparators were wholly attributable to a difference in skills, responsibilities and organisational needs.

Evidence of Ms Fahy, complainant’s line manager and previous Operations Manager, given under affirmation.

The witness gave evidence in relation to the four comparators.

Mr JM, Irish, was incorrectly reported by the complainant to be in receipt of €13.50 an hour. He was paid €13 an hour, the same rate as that paid to the complainant.

 He resigned on 5/4/24 as he had transport difficulties.

Mr FM, Irish, started at the end of March 2023, as a day porter/ night porter; he was available for night work. He was paid €14 an hour as in the event of a major incident he could support night porter and/ or manager. He lived 5 mins from the lodge. The complainant lived a 1.5 hours’ drive from the Lodge.

Mr L , British, was hired for his abilities as tradesperson / trades background. He started mid-April. He was paid €14 an hour. He was deployed as a painter. The Operations Manager, Mr Murphy will give evidence on this point.

Mr GM, Malawian, started April / May at €13.50 an hour. He had previously worked in an International Protection Accommodation Services centre and had experience in fire evacuation.

The witness confirmed that she was present when the complainant and her husband were interviewed for the porter’s position in Charleston Lodge. The interview was conducted on a speaker phone.

At the time of opening the Centre in December 2023, all day and night porters were paid €13 an hour irrespective of their nationality.

All 4 comparators were on fixed purpose contracts for twelve weeks.

Cross examination of the witness.

The witness stated that she was present in Charleston Lodge three times a week from 9-6pm.

The witness stated that she did not recall asking the complainant at any stage to deal with the Garda about clients.

Evidence of Mr Murphy, Operations Manager, given under affirmation.

CA-00063867-001. Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

He stated that he took up this position on 2/4/2024.

He discovered that the complainant had not been provided with a contract.

He confirmed that he gave the complainant a specified purpose contract, already submitted in evidence, on 17/4/2024, for a position at Charleston Lodge. The witness explained to the complainant that her contract would end on the 20/5/2024, the date specified in the contract. She made no complaint at that time.

When the complainant raised the issue of termination of contract in May 2024, he advised her to go to Ms Gaffney.

CA-00063867-002. Complaint under section 77 of the Employment Equality Act, 1998.

The witness addressed the pay of the four comparators.

The witness hired Mr L at a rate of €14 an hour to function in 2 different roles; one was a porter, and the other was a maintenance function.

Mr GM, paid €13.50 an hour, had been a manager in another IPAS Centre. He had skills not available to others. Because of his background in an IPAS Centre, he understood what policies should contain and helped him with that, particularly in the area of resident engagement.

Mr FM, on €14.00 an hour, had more of a maintenance role, and the company was now entering a different phase.

Mr SM, an Irish national, was employed in maintenance, not as a porter. Therefore, the respondent submits that he is not a comparable role to the complainant. He had experience in joinery, carpentry, painting, plumbing and other general maintenance and was paid €14

The complainant was upset at the ending of her contract. She told the witness that she believed that it was a discriminatory act. This was the first time that a complaint about a difference in rates of pay arose.

She asked the witness for information as to how she would pursue a complaint of discrimination against the company. He did not believe that her complaint of discrimination was viable, but he felt that he could not obstruct her in making a complaint and he told her the route. He felt bad for her and needed her to work until the end of her term.

Concerning her assertion that she was doing the same work as Mr L, Mr MG and Mr FM, this is not correct. She did not perform any maintenance work.

She did not provide training to staff, as asserted. She showed them around the building and where they could find equipment/ tools. Policies and Procedures were drawn up by the witness. Any protocols for doing the job were done by the witness.

.

He called Mr L and Mr SM on a daily basis to assist with maintenance.

Summary.

At the time of the complainant’s employment there were 6 other Porters employed all of whom were paid at a rate of €13.00 per hour. 4 people were of Ukrainian nationality, 1 was of Czech nationality and one of Irish nationality.

The pay rates were based on skills and organisational needs and were wholly divorced for tne employee’s race.

CA-00063867-001. Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

It is accepted that the respondent failed to provide the complainant with a written statement of the terms of her employment, contrary to Section 3 of the Act of 1994.

I find this complaint to be well founded.

I require the respondent to pay the complainant 3 weeks remuneration based on the uncontested evidence of weekly hours of 48 at a rate of €13 per hour, in accordance with section 7(2) (d) of the Act.

I find that the complaint of an alteration of terms of employment contrary to section 5 is not well founded, as the complaint was not provided with a written statement of terms of employment amenable to alteration in the first place. No written particulars were changed.

 Furthermore, the contract signed by the complainant on 17/4/2024 specified a fixed term contract for 12 weeks irrespective of whatever her understanding of the initial offer may have been.

CA-00063867-002 Complaint under section 77 of the Employment Equality Act, 1998.

I  must decide if  the respondent has discriminated against the complainant  on grounds of race  in respect of a failure to provide her with equal pay with four named comparators or if the respondent can rely on section 29(5) of the Acts, as amended, which allows different rates of pay to be paid to employees on grounds other than the nine grounds of discrimination set out in the Acts.

Relevant Law.

Section 29(1) of the Act states:

“(1)   It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work that C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer….”

Section 28(1)  of the Act states:

“For the purposes of this Part, “C” and “D” represent 2 persons who differ as follows:

(g) in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors;”

The statute dictates at section 29(1) that I must decide if the complainant performs “like work”, in terms of Section 7 of the Employment Equality Acts, 1998 - 2015, with 4 named comparators of a different race and that, as a consequence, is entitled to the same rate of remuneration paid by the respondent to the comparators.

29(5) of the Act states:

“Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees”.

The primary facts on which the complainant’s case is based, is that she is of a different race to the comparators and for this reason, the respondent paid her less.

The Respondent argued that the comparisons between the complainant and the comparators were not valid as the comparators have different qualifications, experiences, skills and different responsibilities all required by the respondent.

Prima facie case of discrimination?

Section 85 A5(1) of the Act states

“Where is any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”.

The complainant states that she was directly discriminated against on the grounds of race in relation to her rate of pay when the respondent paid all other employees, bar herself and her Ukrainian husband €0. 50 -€1-an hour more than the hourly rate of €13 paid to her. She performs like work or work of equal value with the named comparators who are British, Malawian and Irish

In Margetts v. Graham Anthony and Co. Ltd, EDA 038, the Court noted that other facts, in addition to the fact that the complainant falls into one of the discrimination grounds, are required before it can be determined that discrimination has occurred.

 Like work is defined in Section 7 (1) of the Act as follow:

“Subject to subsection (2), for the purposes of this Act in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if-

     (a)both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work

    (b)the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

 ( c) the work performed by one is equal in value to the work performed by the other having regards to such matters as skill, physical or mental requirements responsibility and working conditions”.

Is the complainant engaged in like work with the comparators within the meaning of Section 7 of the Act?

Like Work.

The CJEU case , Case C-427/11, Margaret Kenny v Minister for Justice, Equality and Law Reform, Minister for Finance, Commissioner of An Garda Síochána, had to address some preliminary questions in a referral of a complaint of pay discrimination on gender grounds from the High Court.

Concerning the matter of like work, The Court held that

          “It is accordingly for that worker to prove by any form of allowable evidence that the pay he    receives from his employer is less than that of his chosen comparators, and that he does the same work or work of equal value, comparable to that performed by his comparators, so that prima facie he is the victim of discrimination which can be explained only by the difference in sex.” (Par 19).

              In such circumstances, it is for the national court, which alone has jurisdiction to find and assess the facts, to make the necessary determination whether, in the light of the actual nature of the activities carried out by those concerned, the workers in question perform the same work or work to which equal value can be attributed “.(Par 26).

       …, the Court has repeatedly held that, in order to determine whether employees perform the same work or work to which equal value can be attributed, it is necessary to ascertain whether, taking account of a number of factors such as the nature of the work, the training requirements and the working conditions, those persons can be considered to be in a comparable situation.”(Par 27)

 Application of the Law and the authorities to the facts of the instant case.

Comparator 1. Mr L.

He is British and his hourly rate was €14. He was originally employed as a porter.  However, it was uncontested that he had previous extensive trade experience and was employed to take on additional duties as a handyman, painter and general tradesperson in addition to his role as a porter. No evidence was presented by the complainant to demonstrate that the role of porter was interchangeable with that of a maintenance worker.

It is correct that the complainant had significant qualifications, but their relevance or centrality to her role as a porter in a Centre for homeless persons was not advanced.

The uncontested evidence of the Operations Manager was that Mr L was called on a daily basis to assist with maintenance.

Comparator 2. Mr GM.

He is Malawian and was paid €0.50 an hour more than the complainant.

The uncontested evidence of the Operations Manager was that he was paid €0.50 an hour more than the complainant, on €13 an hour, because he assisted him in the development of protocols and procedures having worked in an IPAS Centre. He possessed a qualification in Engineering and Robotics.

The company no longer employ staff in the role of porters. The porter role is combined with other functions as this best suits the company’s needs.

Comparator 3. Mr FM.

He is Irish and was paid € 14 an hour. He started at the end of March 2024, as a day porter/ night porter; he was available for night work and in the event of a major incident could support the night porter and/ or manager. He lived 5 mins from the lodge. The complainant lived a 1.5 hours’ drive from the Lodge. This is why he was paid an extra euro per hour.

The complainant maintained that it was unfair not to offer her the opportunity of living in Charleston Lodge and the resulting  opportunity to earn more, but the evidence indicates that at the time of Mr FM’s appointment, the organisation was moving away from engaging personnel confined to the role of porter.

 Comparator 4. Mr JM, Irish. I find that he was paid the same rate as the complainant.

Mr S M, an Irish national, paid €14 an hour was employed full time in maintenance, not as a porter. I find that this is not a comparable role to that held by the complainant. He had experience in joinery, carpentry, painting, plumbing and other general maintenance.

Applying the criteria to be used in deciding if the complainant was engaged in like work or work of equal value to that of the comparators, a difference in qualifications necessary to perform the job is cited as one such benchmark. No evidence was presented by the employer that they had a baseline qualification applicable to the role of porter.  However, I find that the previous experience and skills of Comparator 1 and 2 informed their pay rates.  I find the difference in pay for these two comparators amounting to a €1 and hour and €0.50 an hour, respectively, to be proportionate. I find that their skills suited the organisation’s needs  The working conditions of Comparator 3 paid €1 an hour more than the complainant meant that he could be called upon at night to assist in the Centre.

On the basis of the evidence, I do not find on the basis of the evidence that the complainant whose work, though valuable, was predominantly concerned with keeping the premises clean was engaged in like work or work of equal value. I accept that the comparators employed some months after the complainant joined at a time when the organisation was looking for employees with a more diverse range of skills essential to the running of the Centre. I find that the deployment of the comparators to a more diverse range of duties corresponded to a real need on the part of the respondent, and that the difference in pay was proportionate and appropriate to meeting these needs.

 The Labour Court decision in The Minister for Justice, Equality and Law Reform v Therese Hand, DEE985,  a complaint of discrimination based on a refusal to offer the complainant job sharing, stated  :

       “As was found in Clymo v. London Borough of Wandsworth (1989 IRLR 241EAT), this Court finds

        that it is for the employer, acting reasonably, to decide what is required for the purpose of  

          running the organisation for which it is responsible.”

As per section 7(1)(c) of the Act, I find that the  “skills, physical or mental requirements, responsibility and working conditions “

justify the difference in pay.

I must find, therefore, that the complainant was not engaged in like work or work of equal value. This missing piece prevents the complainant from establishing a prima facie case of discrimination.

I find that the respondent can rely on section 28(5) of the Acts, which allows different rates of pay to be paid to employees on grounds other than the nine grounds of discrimination set out in the Acts.

I am satisfied that the difference in the hourly rate of pay received by the complainant relative to the comparators is grounded on factors other than race and accordingly I am satisfied that the complaint in respect of an entitlement to equal pay to that of the named comparators does not succeed.

:

CA-00063867-001. Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

I decide that this complaint is well founded.

I require the respondent to pay the complaint 3 weeks remuneration to the amount of €1872 in accordance with section 7(2) (d) of the Act.

CA-00063867-002 Complaint under section 77 of the Employment Equality Act, 1998

I decide that the difference in the hourly rate of pay paid to the complainant relative to the named comparators is based on factors other than race and accordingly I decide that the complaint of discrimination on grounds of race in respect of an entitlement to equal pay to that of the  named comparators does not succeed.

CA-00063867-003. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The complainant withdrew this complaint.

Failure to supply terms of employment. Like work.